Berger to undergo second mental health evaluation

Tuesday

Jul 22, 2014 at 12:01 AMJul 22, 2014 at 11:36 AM

The evaluation calls into question Berger's "capacity to proceed," District Attorney Ben David said.

By F.T. NortonFran.Norton@StarNewsOnline.com

A judge ordered sealed on Tuesday a mental health evaluation that found embattled New Hanover County Commissioner Brian Berger incapable of aiding in his defense. As a result, Berger's probation violation hearing was continued until a second evaluation is conducted.The evaluation calls into question Berger's "capacity to proceed," District Attorney Ben David said during a hearing before Judge Robin Robinson. David asked the judge to order a second opinion regarding Berger's mental health and to order him to get treatment should the need be found.But the defense opposed any admittance of Berger into a hospital.Robinson ordered Berger to remain in custody and set Aug. 26 as the tentative date for the probation violation hearing or a competency hearing.Berger, who kept his head down, remained silent during the hearing.Berger's attorney, Mercedes Pinckney, said he has not received treatment or medication in the 41 days he's been incarcerated.Robinson expressed concern that although she ordered the second evaluation within 30 days, if Berger's not receiving treatment, his condition at the next hearing will be the same. "If he's just sitting there languishing in the jail, his capacity to proceed will likely not change," she said. David said if the second evaluation also finds Berger unable to aid in his defense, the state could dismiss the charges with leave to re-file once Berger is determined to be competent. The goal, he said, is to get the new evaluation quickly to prevent Berger from staying in jail any longer than he has to. "The law is pretty clear in terms of 'incapacity to proceed.' It talks about the provisions that the court would utilize to order his continued confinement while that second opinion is being rendered so that he can get the treatment necessary," David said. "He has a 120-day sentence that he's looking at for violating his DWI probation. He's been in custody 41 days. He only has 79 days left. We certainly wouldn't want any determination about his capacity to proceed to go beyond that, because that would mean he was staying in custody longer than he would face is he was convicted of these violations."Berger, who is being held on a $300,000 bail, was arrested June 10 in Beech Mountain for allegedly absconding from probation on a DWI charge in New Hanover County. A new probation violation charge was filed against him after his arrest because police say he was found in possession of more than two dozen weapons belonging to Justin LaNasa, who owns the Beech Mountain home where Berger was staying alone. LaNasa claims the weapons were locked in a room that Berger breached during his stay there. Additionally, Berger was also charged by Beech Mountain police with possession of a marijuana pipe.David said if Berger is found in violation of probation, that would also effect a deferred sentenced on a drug charge and he could face an additional 45 or more days in jail. The freshman commissioner came to the attention of Beech Mountain police after officers were called to the area on a report of shots fired and spoke with Berger in the LaNasa home. The next day officers discovered the probation violation warrant from New Hanover County and went back and arrested him. Berger was on probation as part of a February plea agreement in New Hanover County for impaired driving. He received a 120-day suspended sentenced and was placed on probation for a year. When Berger failed to show up for a meeting with his probation officer, the warrant was issued June 9, David said. Berger's county commissioner term expires in November. He's been arrested four times since taking office in 2010.A felony conviction is one of the only ways Berger could be removed from the board of commissioners prior to his term's expiration in November.